Senators push for inquiry on CIA videotapes

Sen. Dick Durbin (D-Ill.) and other Democratic lawmakers demanded an immediate investigation Friday after the Central Intelligence Agency admitted it destroyed two videotapes that showed agents using extreme methods to interrogate suspected terrorists.

Durbin, the Senate's No. 2 Democrat, asked Atty. Gen. Michael Mukasey to probe whether CIA officials willfully obstructed justice in failing to turn over the tapes during the criminal trial of Al Qaeda conspirator Zacarias Moussaoui, who was later convicted of terrorism charges.

"This is very troubling," Durbin said in an interview. "One must simply conclude that there is something on those videotapes that they did not want the world to see."

And in a fiery Senate speech, Sen. Edward Kennedy (D-Mass.) invoked the ghost of Watergate. "The agency was desperate to cover up damning evidence of their practices," Kennedy said. "We haven't seen anything like this since the 18 1/2-minute gap in the tapes of President Richard Nixon."

CIA Director Michael Hayden said Thursday that the agency destroyed the two tapes to protect the identities and safety of the undercover officers involved and "only after it was determined they were no longer of intelligence value and not related to any internal, legislative or judicial inquiries." The CIA made the admission in response to inquiries from The New York Times.

Sen. Carl Levin (D-Mich.) labeled Hayden's rationale "pathetic." "They'd have to burn every document at the CIA that has the identity of an agent on it, under that theory."

Senate Intelligence Committee chairman Jay Rockefeller (D-W.Va.) said his committee would begin to look into the matter at once.

The White House said that President Bush did not recall knowing about the tapes until Hayden told him about their destruction Thursday. Spokeswoman Dana Perino said whether an obstruction-of-justice investigation was warranted "will have to be determined by others."

Those others include Mukasey, the recently confirmed attorney general. As of Friday afternoon, the Justice Department had yet to indicate whether it would launch a probe, but it is already waist-deep in the affair.

Twice, in 2003 and in 2005, lawyers for the department, relying on information provided by CIA attorneys, assured the federal judge in the Moussaoui case, Leonie Brinkema, that the CIA had no videotapes of interrogations sought by the defense. Moussaoui's lawyers had hoped to use that evidence to show their client played no role in the Sept. 11 attacks.

One of the destroyed tapes showed a 2002 interrogation of Abu Zubaydah, the first detainee in CIA custody. Bush later said intelligence obtained from Zubaydah was instrumental in capturing Sept. 11 mastermind Khalid Sheikh Mohammed. The CIA maintains that the interrogations were not relevant to the Moussaoui prosecution.

In an Oct. 25 letter to Brinkema, the U.S. attorney in Alexandria, Va., Chuck Rosenberg, assured her that the failure to disclose the tapes "did not prejudice Moussaoui, who pled guilty ... and ultimately received a life sentence after the jury declined to sentence him to death."

It is unlikely Brinkema would visit the ultimate sanction upon the government, granting a new trial to Moussaoui, as his first was a circuslike affair marred by seemingly endless battles over classified evidence. He ultimately made life easier for prosecutors by pleading guilty.

But that doesn't mean Brinkema can't make it hurt.

At a hearing in another high-profile terrorism case last month, Brinkema said she could no longer trust the CIA after learning that the government had misled her about the existence of the videotapes in the Moussaoui case. As a result, she threatened to grant a new trial in the case of Ali al-Timini, a Muslim cleric from Virginia sentenced to life in prison in 2004 for soliciting treason.

E. Lawrence Barcella, a criminal defense lawyer and former federal prosecutor in Washington, said Brinkema would need to establish for herself whether Zubaydah and the other detainee interrogated on the tapes could have been witnesses on Moussaoui's behalf. "If either of the two could have been possible witnesses, then it comes under the order she issued and the destruction would be a major issue," Barcella said.

But the bigger issue, Barcella said, might be the "exposure of those that did the destruction, those that knew about it and those who made or didn't make representations about it."

Vincent Warren of the Center for Constitutional Rights, which has been representing detainees held by the government at Guantanamo Bay, Cuba, suggested that the disclosure by the CIA suggests the agency destroyed evidence in other cases. The center represents Majid Khan, a former "ghost" detainee who was allegedly held in a secret prison in Eastern Europe before being transferred to Guantanamo. Warren said the center has asked for materials relating to interrogations of Khan.

"I find it hard to believe the CIA would make videotapes of interrogations of only two people," Warren said.

For the administration, the revelation comes at a particularly inopportune time, as Congress is considering whether to limit the authority of the CIA to employ aggressive interrogation techniques beyond those permitted for other government agents and the U.S. military. Sen. Joseph Biden (D-Del.), among others, called upon the Senate to pass the legislation in response to the CIA's disclosures.